DISPUTE REGARDING SUSPENSION WITHOUT PAY OF A UNION MEMBER

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Health Services Union of Western Australia (Union of Workers)

APPLICANT

-v-

Director General of Health in right of the Minister for Health as the Metropolitan Health Service, the South West Health Board and the WA Country Health Service

RESPONDENT

CORAM PUBLIC SERVICE ARBITRATOR

 commissioner P E Scott

HEARD Thursday, 28 June 2007

DELIVERED FRIDAY, 30 NOVEMBER 2007

FILE NO. PSACR 28 OF 2006

CITATION NO. 2007 WAIRC 01271

CatchWords Public Service Arbitrator - Appeal against respondent's decision to suspend applicant's member without pay - Disciplinary investigation complete but for applicant's member's response - Investigation deferred pending criminal charges at applicant's request - Whether suspension should be without pay - Applicant's member held senior position - Allegations of a serious nature - Opportunity to respond to decision to suspend without pay would not have altered the outcome - Suspension without pay justified - Industrial Relations Act 1979 (WA) ss 6, 26(1)(a) and (c), 44 and 80 - Interpretation Act 1984 (WA) s 52(1)(a) - Public Sector Management Act 1994 (WA) - Minimum Conditions of Employment Act 1993 (WA) - Hospital and Health Services Act 1927 (WA)

Result Matter dismissed

Representation 

Applicant Mr T Borgeest (of counsel)

Respondent Mr R Andretich (of counsel)

Reasons for Decision

1          The Memorandum of Matters Referred for Hearing and Determination under s 44 of the Industrial Relations Act 1979 (WA) (“the IR Act”) is as follows:

 “1. The Applicant says that:

(a) The Applicant is an organisation registered under the provisions of the Industrial Relations Act 1979 (WA).

(b) Mr Moodie is a member of the Applicant and an employee of the Respondent.

(c) Mr Moodie is the subject of an internal disciplinary investigation.  He was stood down from his duties, on full pay, with effect on or about 7 July 2006.

(d) In late October 2006, the respondent was informed that the Corruption and Crime Commission (“CCC”) had expressed its intention to charge Mr Moodie with a criminal offence/s in connection with matters under the internal disciplinary investigation.

(e) On or about 20 October 2006, the respondent suspended Mr Moodie’s salary.  He has received no salary since this time.

(f) On or about 15 January 2007, the respondent wrote to Mr Moodie’s solicitors notifying that the employer required the packaged motor vehicle be returned to the employer within 30 days.  Mr Moodie returned the motor vehicle in accordance with the employer’s demand.

2. The applicant seeks orders and declaration as follows:

(a) A declaration that the 20 October 2006 decision by the respondent to suspend payment of Mr Moodie’s remuneration is void and of no effect.

(b) Orders that the Respondent:

 (i) resume Mr Moodie’s salary with immediate effect;

 (ii) reimburse Mr Moodie the amount that he would have received had his salary not been suspended, within 10 working days;

 (iii) return the packaged motor vehicle to Mr Moodie;

 (iv) reimburse Mr Moodie the cash value of the private use of the packaged motor vehicle for the period over which the vehicle was required to be returned; and

 (v) restore and pay any other elements of Mr Moodie’s remuneration which was “suspended” in accordance with the contract of employment.

(c) A direction that the parties confer as to the calculation of reimbursements provided for under the abovementioned orders, with liberty to apply if agreement cannot be reached.

3. The Respondent rejects the Applicant’s claims and says that:

(a) On 19 October 2006, Mr Moodie’s solicitors advised that the CCC had charged Mr Moodie in connection with the internal disciplinary investigation and requested that the disciplinary matter be deferred pending the outcome of the criminal proceedings.

 (b) The respondent agreed to defer the investigation on 23 October 2006, despite it being complete but for Mr Moodie’s response.

 (c) It was reasonable for the respondent to suspend Mr Moodie, pursuant to s 52(1)(a) of the Interpretation Act 1984 (WA), without pay.

 (d) Mr Moodie’s remuneration included a motor vehicle to which he was not entitled during the abovementioned period of suspension.

4. The Respondent denies that the Applicant is entitled to the relief sought or any relief at all and opposes the orders sought as:

  (a) there was a clear statutory basis upon which the respondent acted;

(b) it would be unreasonable and not in the public interest for Mr Moodie’s suspension to be set aside; and

(c) there is no right of remuneration where services have not been rendered and the circumstances are not such that this principle should not be observed.”

2          At the commencement of the hearing.  The parties submitted a Statement of Agreed Facts (exhibit 1).  This Statement is reproduced below except that references to attached documents have been deleted:

“1. The Applicant is an organisation under the provisions of the Industrial Relations Act 1979.

2. The Minister for Health is incorporated as the board of all the Hospitals comprised in the South West Health Board under s 7 of the Hospital and Health Services Act 1927 (WA), and has delegated all his powers and duties as such to the Director General of Health.

3. On 11 December 2003 Michael Moodie executed a Contract of employment with the then Director General of the Department of Health.  The contract was executed on behalf of the Director General by his delegate.

4. On 28 November 2005 Moodie and the Director General executed a document which varied the terms of the 11 December 2003 Contract.  The variation effectively transferred Moodie from the position of CEO SWAHS to a position entitled Executive Director, Technology.

5. By letter to Mr Moodie dated 7 July 2006, the Director General raised allegations of matters that, he said, “could, if proven, constitute serious breaches of discipline and gross misconduct by you”.  Five issues were identified.  Mr Moodie was directed to remain away from the workplace, to return certain Department property, and to not communicate with employees of the Department or of any Health Service.  The Director General stated that “you will remain on full pay during this absence until otherwise determined by me”.

6. Moodie’s solicitors (Tottle Partners) responded to the allegations by letter on 11 July 2006.  Among other things, particulars of the allegations were requested.

7. The Director General responded to the letter of 11 July 2006 and other associated correspondence by letter on 31 July 2006.  The letter reiterated that Mr Moodie was directed to “remain at home during this formal investigation during which Mr Moodie would continue to be paid”.  The Director General notified Tottle Partners that an independent investigation would be undertaken.  Attached to the letter were certain particulars of the allegations, in response to requests made by Tottle Partners.

8. On 6 October 2006 the Director General wrote to Mr Moodie informing him of the outcome of the formal investigation, and his conclusions or determinations in relation to the investigation’s “findings”.  In relation to three of the four allegations, the Director General advised that no further action would be taken.  In relation to the first allegation, the Director General agreed with the investigator that a serious breach of discipline had been committed.  The Director General advised that he was now turning to consider what action should be taken in that regard, and invited Mr Moodie to provide further information, within 5 working days, if he wished to.  The letter included a copy of the investigation report, and stated that the report had been included so as to assist Mr Moodie in his consideration of the that (sic) matter.

9. On 19 October 2006 Tottle Partners informed the Director General that they had received advice from officers of the Corruption and Crime Commission that the CCC intended to charge Moodie in connection with the matters which were the subject matter of the first allegation.  Among other things, the letter expressed the view that it would be clearly inappropriate for the Department to make any determination as to whether Moodie’s conduct, being the same conduct that is the subject of the criminal charges, amounted to “a serious breach of discipline”.  Against that background, Tottle Partners suggested that further consideration of whether Moodie’s conduct amounts to “a serious breach of discipline” be deferred until the outcome of the criminal charges is known.

10. By letter to Mr Moodie’s solicitors on 20 October 2006, the Director General acknowledged receipt of the 19 October 2006 letter.  The Director General stated that, in light of the advice concerning the CCC’s intentions, Moodie was to be “suspended from duty from the Department of Health”, and that the suspension is to be “without pay”.  This was to take effect from close of business that day, 20 October 2006.  The letter also foreshadowed a further response to the 19 October 2006 letter, after legal advice was obtained, in connection with other matters there raised.

11. As foreshadowed in the 20 October 2006 letter, Moodie’s remuneration payments ceased with effect from 20 October 2006.

12. On 23 October 2006, at conciliation proceedings in the WAIRC, the representative of the Director General informed the representative of the HSU that the disciplinary proceedings would be suspended until the criminal charges were determined.

13. Moodie has been charged with certain criminal offences as foreshadowed in the letter referred to above and dated 19 October 2006.  Moodie has entered a plea of ‘not guilty’ to those charges, and the matter has not yet been determined by the court exercising criminal jurisdiction.

14. On or about 11 January 2007 the applicant wrote to the respondent concerning the investigation and concerning the respondent’s decision to stand Moodie down from duty without pay.

15. On or about 15 January 2007, the Director General wrote to Moodie’s solicitors notifying Moodie that the employer required that the packaged motor vehicle be returned to the employer within 30 days.

16. Moodie returned the motor vehicle in accordance with the employer’s demand, within the period required.

17. On or about 21 January 2007 the respondent wrote to the applicant in response to some of the matters raised in the applicant’s letter of 11 January 2007.”

The Applicant’s Case

3         The applicant’s argument is that the respondent has denied Mr Moodie procedural fairness in making a decision to suspend his pay without giving him an opportunity to be heard.  The applicant says that there is also a question of whether the law allows a suspension of remuneration in the circumstances where there is no particular provision within his contract of employment and no statutory power.  The applicant says that any power to suspend Mr Moodie’s remuneration could only arise by implication from the statutory power of suspension granted to the employer by s 52 of the Interpretation Act 1984 (WA).

4         The applicant further says that there is no implied common law power to suspend (Hanley v Pease & Partners Ltd [1915] 1 KB 698) 

5         The applicant also says that the “no work no pay” principle in Csomore v Public Service Board of NSW (1987) 10 NSWLR 587 and Gapes v Commercial Bank of Australia Ltd (1979) 41 FLR 27 at 33 has no application in this case.  Those cases relate to circumstances where the employees refused to perform the full range of work assigned to them and were directed to refrain from performing any work at all.  In this case, the respondent waived the requirement for Mr Moodie to perform any of his duties and was not in response to any refusal by Mr Moodie to perform any part of his duties.

6         If that power to suspend without pay exists, the applicant says it must be applied in accordance with the common law duty of fairness (Dixon v Commonwealth of Australia (1981) 61 ALR 173 at 178-9).  The applicant says that in the decision in Stead v SGIO (1986) 161 CLR 141 at 145 the statement that “not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial”, refers to extreme or exceptional circumstances in which it would be plainly “futile” to grant a remedy.  A “futile circumstance” would be one where “a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellant court, the question of law must clearly be answered unfavourably to the aggrieved party.” (p 145) 

7         The applicant says that the employer cannot say that the only matters which Mr Moodie might have advanced, had he been given an opportunity to be heard, were matters of law rather than fact and that such matters must have been without foundation. 

8         The applicant also says that the failure to afford procedural fairness means that the decision is void and the lost remuneration is payable.

9         As to the merits of the case, the applicant says that the employer’s conduct amounts to a breach of its common law duty of fairness and that “[t]he applicable legal principle is that a decision to suspend remuneration, without affording the legal right to be heard is void and ineffective” (par 37.3 Applicant’s Submissions).  The applicant also says that it has always been open to the respondent to reverse its decision, provide Mr Moodie with an opportunity to be heard and consider his response in making the decision afresh. 

10      The applicant notes in particular that Mr Moodie is entitled to be treated as innocent until proven guilty and that whether he is ultimately found guilty or not is irrelevant when considering the respondent’s decision to suspend.

11      The applicant seeks the following declarations and orders: 

“(1) It is declared that the Director-General’s decision to suspend Michael Moodie’s remuneration, with the effect from 20 October 2006, is void and of no effect. 

(2) It is ordered that the Director-General immediately resume provision of all payments and other elements of the remuneration package to which Michael Moodie is entitled under his contract of employment.

(3) It is ordered that the Director-General provide to Moodie, forthwith, such amounts of backpay and the cash equivalent of non-financial elements of Moodie’s remuneration package as have been withheld from Moodie in the period between 20 October 2006 and the date of this order.             

(4) The parties have liberty to apply in connection with order (3) hereof, in the event of any disagreement as to the calculation of amounts payable thereunder.”

The Respondent’s Case

12      The respondent says that it has the power to suspend without pay which goes hand in hand with the power to suspend, provided for in s 52(1) of the Interpretation Act 1984 (WA).  It also says that the effect of suspension in accordance with the statutory power is suspension without pay. 

13      As to the merits of the decision to suspend, the respondent relies upon the relationship between Mr Moodie and itself as being a fiduciary one (Concut Pty Ltd v Worrell (2000) 176 ALR 693 at 698).  It refers to acts of dishonesty or similar conduct being destructive of the mutual trust necessary in the employment relationship.

14      The respondent says that it formed the suspicion that Mr Moodie had acted dishonestly and arranged for an investigation of the allegations.  The investigation was complete except for Mr Moodie’s response.  Mr Moodie’s solicitors requested, as a result of his being charged with concurrent criminal charges, that it defer final determination of the disciplinary matter.  The respondent says in the circumstances of the suspension of the disciplinary matter it was unreasonable that the respondent should not finalise the disciplinary proceedings yet continue to pay Mr Moodie.  It has no control over when the criminal matters will be heard and in the circumstances of Mr Moodie’s position within the structure of its organisation and the charges against him it is inappropriate that his services be utilised and that it is untenable that he return to work.  It is not in the public interest for the order to be made that Mr Moodie be paid during periods when no service is rendered. 

15      Alternatively the respondent says that if there is no power to suspend it relies on the decision of the Full Bench in Director General Department of Justice v Civil Service Association of Western Australia Inc (2003) 83 WAIG 908 where his Honour, the President said: 

“Whether the suspension was unlawful or not, however, on the authority of Csomore and Another v Public Service Board of NSW (op cit) and “Law of Employment” 5th Edition, (op cit), Ms Bowles was not entitled to be paid a salary, since she has not rendered any service for the relevant periods.”  (at par 53)

The respondent also relies on Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435, that where no services are rendered there is no entitlement to wages.

16      The respondent refers to the evidence of acts of dishonesty by Mr Moodie and the instituting of criminal proceedings by the Corruption and Crime Commission.  It says that it is untenable for Mr Moodie to remain at work in a senior position and it is not in the public interest that the respondent be required to pay him for those periods where he has been excluded from the workplace.  This is particularly so in circumstances where the respondent is unable to bring the disciplinary proceedings to an end for reasons outside of its control. 

17      Finally, the respondent says that if Mr Moodie should have been given an opportunity to be heard, it would have made no difference to the respondent’s decision to suspend and therefore no remedy should be provided (Stead v SGIO (op cit)).

Issues and Conclusions

18      There are a number of issues associated with the resolution of this matter.  They are:

1. Is there a power to suspend?

2. Is the suspension without pay?

3. Is the suspension void due to a failure to provide an opportunity to be heard?

Is there a Power to Suspend?

19      The issue of whether the respondent has the power to suspend Mr Moodie’s employment is a matter for the contract of employment, statute, or common law.

20      The “Contract of Employment between the Minister for Health and Michael Harris Moodie” of 19 August 2002 says that it:

“will apply in conjunction with, and is subject to, the relevant provisions of the Public Sector Management Act 1994 (WA), the Minimum Conditions of Employment Act 1993 (WA) and the Hospital and Health Services Act 1927 (WA).” 

21      As of 1 January 2006, the contract was varied in that Mr Moodie was to undertake a new role however the remainder of the terms of the contract were maintained.  This contract contained no reference to suspension, either with or without pay. 

22      Neither of the parties referred to the Public Sector Management Act 1994 (WA) (“PSM Act”) s 82 – Suspension Without Pay, as providing the statutory basis for the suspension. 

23      The Interpretation Act 1984 (WA), s 52 – “Power to appoint includes power to remove, suspend, appoint acting officer, etc. provides:

“(1) Where a written law confers or imposes a duty upon a person to make an appointment to an office or position, including an acting appointment, the person having such power or duty shall also have the power –

(a) to remove or suspend  a person so appointed to an office or position, and to reappoint or reinstate, any person appointed in exercise of such power or duty;”

Therefore, the respondent’s power to appoint Mr Moodie brought with it the statutory power to suspend him.

24      The question remains as to whether the power to suspend was a power to suspend without pay.  According to G J McCarry in “Aspects of Public Sector Employment Law” the effect of suspension is that it has an impact on the right to wages.  McCarry says:

“The effect of a suspension, and especially its impact on the right to wages, will depend on the terms of the statute under which the suspension is effected, although prima facie it involves loss of wages. [Browne v Commr for Railways (1935) 36 SR (NSW) 21]  As mentioned earlier there is no common law right to suspend implied in the contract of employment.  Where a right to suspend does exist and is exercised “the whole contract is suspended, the obligations on both sides are suspended…The contract is suspended with regard to its performance by both sides, not only by one.” [Wallwork v Fielding [1922] 2 KB 66 at 72 per Lord Stundale MR] “If the employed is suspended from his functions as an employed person, it seems…that the effect of that is to suspend the relation of employer and employed for the time being; to excuse the servant or the employed person from performing his part of the contract, and at the same time to relieve the employer from performing his part of the contract.” [ibid at 74 – 75 per Warrington L J]  This is not to say that, subject to statute, salary will not later be payable if the officer is subsequently found innocent or if he appeals successfully against dismissal or conviction. [Commr for Railways (NSW) v Cavanough (1935) 53 CLR 220; Grady v Commr for Railways (NSW) (1935) 53 CLR 229]  Nowadays it is not uncommon for statutes authorising suspension of public sector workers to provide also that salary will not be payable during such suspension, save, perhaps in certain specified circumstances or if appropriate authority so directs.  Where an officer is suspended with salary and by statute is deemed to be on leave of absence with salary, it has been said that her or his obligations as an officer will continue to be binding. [Munnings v Smith, unreported, Federal Court of Australia]  Thus the person may be obliged to obey a lawful order to report for a medical examination.  However it is clear that not all obligations (for example, to work) continue during suspension.

… As suspension does not terminate the contract, rights to benefits dependent on its continuation may continue to accrue.  But as suspension does seem to put service at an end for the period of the suspension, benefits which depend on continuity of service may not continue to accrue during suspension.”

25      Csomore v Public Service Board of NSW (op cit) and Gapes v Commercialh Bank of Australia Ltd (op cit) are cases where the employees refused to perform the full range of duties and were therefore directed to refrain from performing at all.  Those circumstances are distinguished from this case where the respondent firstly directed Mr Moodie to remain away from the workplace, thereby not requiring him to perform any of his duties but continuing to pay him, and then suspended him without pay until the disciplinary process, put on hold at his request, could be finalised.

26      According to the authorities suspension is not merely of the obligation on one hand to provide work and on the other to perform work, it is the suspension of the contractual rights and obligations, including the right to payment.  However, where criminal charges and/or the allegations of breach of discipline are subsequently not sustained, subject to the statute, the employee would be entitled to be reimbursed the contractual benefits lost on account of the suspension.  On 7 July 2006, the respondent sent Mr Moodie home and relieved him of the obligation to perform work.  All the other contractual rights and obligations continued.  However, when the respondent wrote to Mr Moodie on 20 October 2006, informing him of the decision to suspend him without pay, the rights and obligations under the contract were placed in abeyance.

27      Therefore, the respondent was under no obligation to pay salary to Mr Moodie from 20 October 2006.  The obligation was suspended.

28      The question then arises, was the respondent in breach of the requirement to afford Mr Moodie natural justice or standards of fairness in the manner in which it reached its decision to suspend him without pay? 

29      It is noted that the respondent’s decision is not a decision of the court however the principles of natural justice still apply.  In Dixon v Commonwealth of Australia (op cit) the High Court held that although there is to be a right to be heard prior to any decision to suspend no formal hearing is required.

30      In Stead v SGIO (op cit), the High Court referred to the general principles applicable and expressed by the English Court of Appeal in Jones v National Coal Board [1957] 2 QB 55 at 67 that:

“[t]here is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge ... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.”

31      Also in Stead v SGIO (op cit) their Honours noted that:

“Would further information possibly have made any difference?  That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge in the first trial.  An order for a new trial in such a case would be a futility.

For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial.  By way of illustration, if all that happened at the trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law would clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.

Where, however, the denial of natural justice affects the entitlement of the party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness would be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference.”

32      Was the respondent obliged to provide Mr Moodie with the opportunity to be heard regarding its intention to suspend him without pay prior to suspension?  Under normal circumstances, an employer is obliged to provide procedural fairness to an employee prior to making any decision which will have an adverse effect upon the employee.  However, where it would be futile to do so, in that it would not alter the decision, then there is no such requirement (Stead v SGIO (op cit)).

33      There is no dispute about the facts surrounding the suspension.  The respondent undertook an investigation into allegations of breaches of discipline by Mr Moodie.  The investigation was completed.  The respondent provided Mr Moodie with an opportunity to respond to the investigator’s report.  Until this time, Mr Moodie had been relieved of the obligation to perform work but his salary was maintained.  Prior to Mr Moodie responding to the investigator’s report, Mr Moodie was charged with criminal offences.  He sought not to respond until such time as the criminal charges were resolved.  As is usual in such cases where the employee may jeopardise his or her position before a criminal trial by making any statements to the employer the respondent agreed to the disciplinary process being held in abeyance pending the outcome of the criminal proceedings.  In this case, that meant that the employer, at Mr Moodie’s request, did not require him to respond to the investigation report at that time and it therefore could not conclude the disciplinary process.  Therefore, there is little by way of the facts which Mr Moodie could have put to the respondent.  Accordingly, it would have made no difference to the respondent in its decision to suspend without pay for Mr Moodie to have been given an opportunity to be heard it would have been futile.

34      As to the merits of the suspension without pay, it should be noted that the role of the Public Service Arbitrator as the constituent authority of the Commission, according to s 6 of the IR Act and s 26(1)(a) and (c) in particular, is the resolution of disputes according to equity, good conscience and the substantial merits of the case.  It is not an administrative tribunal whose role is to examine the application of proper process and declare void those decisions which fall short of the appropriate standard.  It is to provide practical and equitable resolutions.  In this case, that requires consideration of whether the respondent’s decision to suspend without pay was fair and equitable even if a proper process was not applied.

35      The respondent made submissions as to the criminal charges.  If those submissions were intended, in some way, to suggest that the probability of Mr Moodie having committed the alleged breaches of discipline or being guilty of the charges is high, and that this constitutes good reason for not providing him with an opportunity to be heard prior to the decision to suspend being made, then this is not a relevant consideration.  The issue of the suspension without pay does not relate to Mr Moodie’s guilt or innocence.  However, if the submission was that the nature and seriousness of the allegations is a consideration, then this is so.  This factor goes to the appropriateness of continuing to have Mr Moodie undertaking work for the respondent during the time following his being charged with criminal offences, prior to their resolution. 

36      In the circumstances of the nature and seriousness of the allegations, and the seniority of the position held by Mr Moodie and the nature of that position it was indeed inappropriate for the respondent to provide him with work.

37      Also, given the lengthy period which was likely to pass before the criminal charges could be resolved, it would be unreasonable and contrary to the public interest for the respondent to be required to continue to pay Mr Moodie while he was providing no work.  This period of delay was beyond the control of the respondent and the respondent was unable to conclude its investigation through no fault of its own.  This is as a consequence of agreeing to Mr Moodie’s request.  It is of no benefit to the respondent to have such a delay, although it is to Mr Moodie’s benefit.

38      Therefore in the circumstances of:

(a) the nature and seriousness of the charges;

(b) the seniority and nature of the position held by Mr Moodie;

(c) the inappropriateness of the respondent providing him with work;

(d) the lengthy delay before a trial; and

(e) placing the disciplinary proceedings in abeyance at Mr Moodie’s request,

the merits of the situation favour the suspension without pay.

39      Taking account of the all the circumstances, I conclude that:

(a) the respondent had a statutory power to suspend Mr Moodie in his employment;

(b) the suspension in those circumstances is without pay;

(c) it would have been futile to have provided Mr Moodie with an opportunity to be heard in respect of the suspension prior to the decision having been made; and

(d) alternatively, in the circumstances, there was no unfairness in the suspension without pay. 

40      Accordingly the matter will be dismissed.